This essay is part of an ongoing partnership between Law & Liberty and the James Wilson Institute on Natural Rights and the American Founding. Essays in this series explore the rich interplay among law, governance, and political philosophy.
In the opening piece of this Symposium, I argued that state courts can begin to reintegrate the natural law into American jurisprudence through the common law—providing a pathway forward for a substantive conservative jurisprudence that reaches beyond mere interpretive theory. The responses of Josh Hammer and Jesse Merriam strengthen and refine that thesis. Hammer points us back to the telos of the American regime: a substantive commitment to the common good of the American People. Merriam, for his part, returns us to the primacy of the states as the constituent political units of our federal system whose ends are not merely to supplement and sway the jurisprudence of the central government.
Both make important points. Hammer is correct that abstract human reason alone cannot restore conservative jurisprudence—careful attention to our history and traditions as well as the unique world-historical role of the American Republic is required. And Merriam too is right that states matter as states, that is, as political communities with their own peoples and their own common goods to be achieved. But the tension between the two positions is obvious, if not in their premises, then at least in their tendencies. To wit, Hammer is certainly Hamilton; Merriam, perhaps, is Mason. The Federalist-Antifederalist divide is always with us.
Substance, Not Just Process
First, I want to affirm that the aim of common-good conservatism is primarily to establish just laws—laws whose content is in accord with natural law and whose prudential determinations further our flourishing. That aim, standing alone, says nothing about who constitutes the relevant political community and which organizational structures—the separation of powers, federalism, etc.—are required to maintain it. The point of substantive jurisprudence is that it looks to the content of the law that governs us, not merely to the procedures by which it is created. So, to the extent we all share in that project, we should establish that the demands of our law—not merely the identity of our lawmakers—matter most.
Thus, I am not concerned, as Merriam is, with whether we treat states and state courts as means to the end of better federal courts. I wholeheartedly agree that states matter for their own sake. But all courts, all governments—state, federal, territorial—are means to the end of establishing justice. It is the content of our law, not the stature of our courts, that concerns me. I do expect state courts to influence federal courts, but mostly I expect them to decide cases rightly. If they cannot do that, it does not matter what the federal courts do with the tiny sliver of our daily contests left to their decision.
Nor am I concerned here with the criticism that we are in desperate need of a stronger culture first. For one thing, as Henry James said, “We must grant the artist his subject, his idea” because “our criticism is applied only to what he makes of it.” By all means, exhort Americans to attend religious services, build virtuous marriages, and raise healthy, patriotic families. But if legal elites are moving in the right direction, do not dissuade them by decrying the project as hopeless. Each person has only a slice of the culture entrusted to his care. If we fret over all of it, we’ll never set about fixing any of it.
Quo Vadis, Conservatism?
Second, I will accept the debate on its own terms—that now is a time for choosing whether to embrace national power or double down on our traditional commitments to subsidiarity, decentralization, and federalism. The resolution of that debate, to my mind, requires separating the political problem from the legal problem.
The political problem is one I am ill-equipped to resolve. It is that, for Hammer’s view to succeed, the American People must share some common good—an Augustinian common object of our love—that binds us together in some way thicker than a mutual agreement to win wars and otherwise let each other alone. I am not sure this argument will be successful. If it fails, it is not necessarily because the states themselves are the true and only political communities, pace Merriam, but because the United States is divisible into a number of regional cultures that transcend state boundaries but nonetheless fail to fill full our national boundaries with a single, dominant, common culture.
The mode of argument employed by Hammer has its vanguard in the predominantly communitarian tradition of the Northeast augmented by the teachings of Catholic Social Thought. The natural home of Merriam’s argument is among the Evangelicals of the South and Appalachia, who provide the base of electoral support on which conservative elites ultimately rely. And therein lies the problem. There is a mismatch between the communitarian impulses informing the new thrust for national conservatism and the regional Antifederalist-populist tradition of its target audience. One need only imagine how poorly a “common-good conservative case for federal vaccine mandates” would play to see the limits. Unless this tension is resolved, I am unsure which way represents the best political path forward for achieving the jurisprudential results that are ultimately the aim of my previous arguments.
The second problem is whether our jurisprudence requires expanding or limiting the power of the central government. Here, count me on the side of Merriam. While the political problem invites a both/and strategy—shoring up national coalitions while working for state-level reforms—the jurisprudential problem presents zero-sum choices. Are we for the incorporation doctrine or against it? Will the Commerce Clause be construed broadly or narrowly? Will the separation of powers be strictly enforced and the administrative state brought to heel, or will we embrace Leviathan in the hope that a motivated minority can integrate and overcome the gravitational forces of the managerial class? When deciding real cases and controversies, we cannot have it both ways. A theorist can shove off these problems, but a judge cannot.
Hammer appears to want more national power. Merriam appears to want much less. Both might agree that federal courts should be far weaker than they are now. But, setting aside the separation of powers within any of our governments, we still must take sides on the proper allocation of power between the states and the central government. In doing so, however, we cannot sink back into the proceduralist view that allocation of power alone is enough. Procedure must be wed to substance.
A Proposed Synthesis
My proposal, then, is simple. The localist, agrarian, decentralized tradition of the Antifederalists must be untethered from the doctrinaire libertarianism and value-free proceduralism with which it has become associated. It must be reunited with the natural law tradition to fashion a jurisprudence—and a culture—whose concern is not merely local control for the sake of local control but an embrace of the moral tenets underlying the classical legal tradition. We must marry Antifederalist sympathies, which recognize the dangers of concentrating power in the hands of a governing class whose values are alien to the governed, to the holistic conservative jurisprudence, which requires an acceptance of a broader role for state action in the maintenance of common culture and public virtue. In short, Antifederalist procedure, natural-law substance; subsidiarity and solidarity.
This proposal will require clarification of something that conservative jurists have often misunderstood. Natural law, when discussed at all, is treated as coterminous with substantive due process—the specter of unlimited judicial power to make up rights and re-write constitutions. This is not correct.
Natural law demands more of government than doctrinaire libertarianism does, but it also restrains it by the specification of just ends in a way that kneejerk fear of state power cannot. It specifies what duties we have and determines the legitimate ends of government activity. Because it grounds our obligation to just authority, it requires an adherence to the allocation of power within a constitutional framework. And, by incorporating the insights of custom and tradition, it helps specify the purposes of government beyond mere abstract shibboleths like freedom or equality, providing an intellectual weapon that restrains unjust power, whether private or public.
The loss of natural law does not limit the power of the courts; it expands it by blurring the line between law and policymaking. Erie Railroad Co. v. Tompkins has, in this Symposium, become a good case in point. Erie is the quintessential New Deal Court opinion holding that federal courts, sitting in diversity, must apply the decisions of state courts as though they were determinative of positive law. For Merriam, Erie is good because it prevents federal courts from making federal common law, thus usurping the role of the states. Hammer appears to find it incorrect because it prevents federal courts from engaging in the morality-laden argumentation that common law requires, thus shutting the federal courts off to one avenue toward moral jurisprudence. I find Erie troubling for an entirely different reason: The pronouncement that federal courts will treat state court decisions as on par with legislative enactments is nothing short of federally mandated legal realism.
Under Swift v. Tyson, properly understood, federal courts took state jurisprudence on its own terms, reasoning from natural law, local practices, and the customs of interstate trade that would not normally be applicable to intrastate disputes—a “general common law” that applied the same method as the state courts while appropriately tailoring it to the circumstances for which diversity jurisdiction exists. Federal courts did all this without assuming that state-court decisions somehow made law.
Not so with Erie. Now federal courts, in a show of faux deference, override the constitutional design of the states and treat state-court decision-making as lawmaking. The federal courts are absolutely bound by each state’s “common law,” which now means judicial opinions, not the mixture of objective morality and local custom to which those opinions refer and from which they derive their obligatory force. In short, Erie mandates legal realism by denying states the right to have their courts act as courts rather than lawmaking bodies—at least in the eyes of federal courts.
I suspect this has weakened the ability of states to retain a proper vision of the law and sown positivist thinking into every court in the land. States freely invent new causes of action and rejigger old common-law rules on the basis of policy arguments, all under the view that common law is just a residual domain of judicial lawmaking that hasn’t yet been gobbled up by the state legislatures. We are emphatically worse off for it.
Our Constitutional Balance
Finally, it is not true that all limitations on federal power make for stronger states. The federal government may well be called upon to stamp out unjust laws that threaten the fabric of the Union and infect neighboring states with the blight of lowest-common-denominator morality. That is why Section 5 of the Fourteenth Amendment exists. Drastic times may call for swallowing our procedural fears and forging ahead with federal power to resolve widespread social crises.
But, on the whole, reform of American jurisprudence will require an intense focus on the health of our state governments. Bringing them up to their full capacity to govern justly will require cutting back, strategically and thoughtfully, on the overreaches that have accumulated over the last century of federal aggrandizement. A new synthesis of the natural law tradition and the Antifederalist vision of state power would present a more faithful account of our constitutional order than its competitors.
It might also foster a love of the local legal system, the small slice of the Nation that has been entrusted to us. As Chesterton has it, men did not love Rome because she was great; she was great because they loved her. So too with America.
So too with every state we call home.